The Tennessee Supreme Court will soon be considering a proposed change to the rules of ethics that govern licensed attorneys that could well result in my disbarment because of the things I’ve written the last few weeks about marriage.
The proposed change adds a commentary to illuminate the intent behind our rule prohibiting discrimination. The proposed commentary says it is unethical for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law.” (emphasis supplied)
The Supreme Court provided attorneys an opportunity to submit their opinion about the proposed commentary. I suspect that the opinion I filed with the Court was rather unique. Here is an abbreviated version of what I said:
I hereby voice my objection to the new proposed Rule 8.4 . . . because, to my knowledge, neither the Board of Professional Responsibility nor the Tennessee Bar Association have provided a foundation upon which the meaning of the word “discrimination” and its grammatical variations can be determined and, therefore, it has not provided a basis for determining that the various listed offenses are, in fact, discriminatory or how a lawyer can know or reasonably know whether his or her actions are, in fact or in principle, discriminatory.
Law, in order not to be arbitrary, must rest upon sure and fixed standards and definitions. To do otherwise is what prior generations of legal philosophers would have called lawlessness.
Unless any act that anyone claims to be discriminatory is going to be held discriminatory by all, then there must be some standard by which an act is determined to be unethical and unjust discrimination. Otherwise, we who are to be defenders of the law have become lawless and rightly susceptible to claims of injustice.
For instance, the current commentary to current Rule 8.4 prohibits discrimination on the basis of age. But TCA § 36-13-506 uses age as a basis for discriminating against the treatment given different perpetrators of rape. There is “mitigated statutory rape” and “statutory rape,” as distinguished from rape. Are those laws unethically and immorally discriminatory, and would the advocacy in favor of keeping those laws in favor of all rape being treated the same, regardless of the victim’s age, be unethically discriminatory?
Many would scoff at this example, but those who scoff at the serious question of the basis upon which we determine something to be ethical and justifiable discrimination or unethical and unjustifiable discrimination expose their ignorance. Even by saying my example is a poor one and irrelevant, they are, in fact, exercising a form of discrimination, discriminating between examples they believe to be relevant and those they believe to be irrelevant and doing so on the basis of a standard for determining relevancy.
Their scoffing betrays the denial of the question I beg this Court to answer—Is there a standard upon which we have determined that discrimination proposed in this new commentary on our ethical obligations is good or bad, and what standard will be applied to future claims of discrimination?
This becomes particularly problematic given that the proposed commentary on the rules prohibits conduct “the lawyer knows or reasonably should know is harassment or discrimination.” If one holds to certain belief systems, for example, the beliefs flowing from the orthodox, historic doctrines of Christianity regarding the nature of human beings and human sexuality, the nature of the social order, and natural law, then a lawyer saying or doing something consistent with those beliefs would not “know” or “reasonably know” his or her comments or actions about same-sex marriage or “sexual orientation” to be discriminatory. Rather, for that lawyer not to say them would be a denial of his or her core beliefs.
Until this Court, the Bar Association, and the Board of Professional Responsibility can articulate for the members of the bar a standard for determining which acts constitute discrimination that should be prohibited and those which may be allowed, in my view none have any business proceeding on what would be an undefined and therefore arbitrary basis.
Arbitrary, rootless law grounded only in the excogitative genius of those who then happen to control the apparatus of power is the definition of tyranny and is a threat to liberty, not just to me, but to all.
As George Mason, delegate to the Constitutional Convention of 1787 said, “No free government or the blessings of liberty can be preserved to any people but by . . . frequent recurrence to fundamental principles.”1 I beg of this Court to consider those fundamental principles.
So, proceed as you must, but know that for me, I stand on the side of Patrick Henry—give me true liberty, even if it means you take my license.
- Quoted from Charles Warren, The Making of the Constitution, 804.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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